BOARD DATE: 28 January 2014
DOCKET NUMBER: AR20130007316
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests correction of his records to show he was placed on the Retired List as a staff sergeant (SSG) in pay grade E-6.
2. The applicant states:
* at the time of his discharge the unit administrator incorrectly filled out the paperwork and overlooked the highest grade he held
* he was not aware he had to apply for his retirement at age 58 and he did not until he was 60
* he tried a couple of times to change this and did not get anywhere with anyone
3. The applicant provides:
* letter, dated 12 February 2013, to a Member of Congress
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant's complete military records covering the period 1952 to 1974 are not available for review.
3. He was born on 15 August 1934. Having prior service in the Army National Guard (ARNG) and U.S. Army Reserve (USAR), he enlisted in the ARNG on
11 September 1961.
4. The available records do not contain promotion or reduction orders for the rank/pay grades of SGT or SSG.
5. He was honorably discharged from the ARNG on 1 June 1973 in the rank of sergeant (SGT)/E-5 for incompatible occupation.
6. Item 29 (Highest Grade Held) of his NGB Form 22 shows the entry "SSG E6."
7. He subsequently served in the USAR and ARNG from 1974 to 1979.
8. Item 4 (Highest Grade Held) of his undated DD Form 108 (Application for Retired Pay Benefits), dated 23 February 1996, shows the entry "E-6."
9. His retirement orders, dated 6 August 1996, show he was placed on the Retired List in the rank/pay grade of SGT/E-5 effective 15 August 1994.
10. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states a person granted retired pay will receive such pay in the highest grade (temporary or permanent) satisfactorily held by him or her during his or her entire period of service. Service in the highest grade will not be deemed satisfactory if it is determined that any of the following factors exist: (a) revision to a lower grade was expressly for prejudice or cause, due to misconduct, or punishment pursuant to Article 15, Uniform Code of Military Justice, or court-martial; or (b) there is information in the Soldier's service record to indicate clearly that the highest grade was not served satisfactorily.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant was honorably discharged from the ARNG on 1 June 1973 and his highest grade held was E-6 prior to discharge. It appears the authority for his reduction to SGT was a voluntary administrative reduction.
2. Since there is no evidence of record which shows his service in the rank of SSG/E-6 in the ARNG was not satisfactory, and in accordance with the governing regulation, his military records should be corrected to show he was placed on the Retired List in the rank/pay grade of SSG/E-6 effective 15 August 1994.
BOARD VOTE:
___X__ ____X____ ___X_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was placed on the Retired List in the rank/grade of SSG/E-6 effective 15 August 1994 and paying him any increased retired pay due as a result of this correction.
_______ _X _______ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
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